The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

Decisions of the Commissioner of Education, Decision #17060

In this appeal the applicant asked the Commissioner of Education to remove "the Library Director and the Board of Trustees" of a public library pursuant to Education Law §306. 

The Commissioner said this aspect of the applicant's appeal "must be dismissed for lack of subject matter jurisdiction," explaining that Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty. 

However, said the Commissioner, a public library trustee or a Library Director is not a “school officer” as defined in Education Law §2(13) and such personnel are not among the officers listed in §306.  Accordingly public library personnel are not subject to removal by the Commissioner pursuant to Education Law §306.

The Commissioner then observed that a trustees of a public library, as the trustees of an education corporation, may be removed for misconduct or neglect of duty by the Board of Regents pursuant to Education Law §226(4). *

As to the Commissioner's authority with respect have jurisdiction over a "school officer," the decision notes that Education Law §2[13] defines the term school officer as follows: " The term 'school officer' means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”

* An employee of a public library may be terminated from his or her position or otherwise disciplined by the trustees of a public library acting in their capacity as the appointing authority consistent with administrative due process.

Decision #17,060 is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17060

Failure to comply with emergency leave regulations

Failure to comply with emergency leave regulations

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New York City Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Astrid B. Gloade recommended a 63 day suspension without pay, nine days for each proven charge, for a sanitation worker who failed to comply with emergency leave regulations on seven occasions.

The worker requested emergency leave three times due to car trouble, twice for emergency child care leave, and twice due to plumbing issues. On each occasion the worker failed to submit required documentation regarding his leave requests.

Due to the worker’s extensive disciplinary history, mostly for violating time and leave rules, Judge Gloade reasoned that a penalty at the highest end of the range imposed under similar circumstances was appropriate.

Dep’t of Sanitation v. Perez, OATH Index No. 370/17 (Jan. 20, 2017), modified on penalty, Comm’r Dec. (Feb. 7, 2017) (Commissioner imposed penalty of termination of employment).

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017

Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Comptroller DiNapoli & A.G. Schneiderman Announce Felony Conviction of Upstate Woman for Pension Fraud and Welfare Fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of Tammy Banack, a resident of Kirkville, New York, of the crime of grand larceny in the third degree, a class D felony. Banack pleaded guilty before Hon. Stephen J. Dougherty in Onondaga County Court in satisfaction of a five-count indictment handed up against her earlier this month charging her with stealing pension benefits issued to her deceased mother and fraudulently obtaining $19,000 in welfare benefits from the Onondaga County Department of Social Services.

Preschool Special Education Provider Received Nearly $6 Million for Ineligible Expenses

A Manhattan-based preschool for children with disabilities charged the State Education Department nearly $6 million for expenses that did not qualify for taxpayer reimbursement, State Comptroller Thomas P. DiNapoli announced. DiNapoli's auditof New York League for Early Learning Inc. focused on $138 million in expenses the school claimed for special education services over the three fiscal years ended June 30, 2014.

Comptroller DiNapoli and Mayor Brown Return Over $100,000 in Unclaimed Funds to Buffalo Residents

New York State Comptroller Thomas P. DiNapoli announced that $111,180 in unclaimed funds has been returned to Buffalo city residents since he partnered with Mayor Byron Brown on March 16 to urge people to claim their lost money. Over $88 million still remains available for residents to claim. 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

East Hampton Housing Authority – Board Oversight

Eggertsville Fire District – Financial Activity

Mastic Beach Fire District - Cash Disbursements

Town of Moira – Fiscal Oversight and Selected Financial Operations

Town of Oxford – Financial Management and the

Town of Somerset - Budgeting for Sales Tax.

 

Hearing officer's applying an incorrect standard in making his or her determination requires the remanding of the matter for a new hearing

Hearing officer's applying an incorrect standard in making his or her determination requires the remanding of the matter for a new hearing

McGowan v New York State & Local Police & Fire Retirement Sys., 2017 NY Slip Op 01751, Appellate Division, Third Department

James K. McGowanworked as a police officer for the Waterfront Commission of New York Harbor. In 2010, he applied for accidental disability retirement benefits, alleging that he was permanently incapacitated from performing his job duties as the result of a work-related motor vehicle accident that occurred in 2005. His application was denied upon the ground that he was not permanently incapacitated from performing his duties as a police officer, and McGowan requested a hearing and redetermination.

The Hearing Officer upheld the denial, finding that McGowan had failed to meet his burden of establishing that he was permanently incapacitated from performing his job duties and that the initial determination was supported by substantial evidence.

The Appellate Division overturned the Comptroller's adoption of the Hearing Officer's determination. The court ruled that the Hearing Officer misstated and applied the incorrect legal standard in rendering her decision.

The Hearing Officer, said the court, improperly analyzed whether the initial determination was supported by substantial evidence, "rather than undertaking a redetermination and exercising the same powers upon such hearing as upon the original application."

As the Comptroller failed to recognize this error of law prior to adopting the Hearing Officer's decision, the Appellate Division ruled that the Comptroller's the determination must be annulled and the matter remitted to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01751.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law

Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law

Source: NYS Department of Civil Service, Division of Staffing Services

NYS Department of Civil Service, Division of Staffing Services has published Policy Bulletin 17-01, Program Guidelines and Procedures for Appointments Pursuant to Sections 55-b and 55-c of the Civil Service Law.

These guidelines were adopted by the New York State Civil Service Commission at its meeting of February 2017 to clarify the policies and procedures to ensure the greatest employment opportunities for those persons with disabilities and Veterans with disabilities whose disabilities have placed them at a disadvantage in obtaining entry into the workforce.
 

The text of Policy Bulletin 17-01 is posted on the Internet at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2017-01.htm

A PDF version of Policy Bulletin 17-01 is available on the Internet at:

https://www.cs.ny.gov/ssd/pdf/pb17-01.pdf

Important Information on W-2/SSN Data Theft Scam

Important Information on W-2/SSN Data Theft Scam

Source: The Internal Revenue Service

The Internal Revenue Service has called attention to what it characterizes as "A dangerous email scam" currently circulating nationwide and targeting employers, including tax exempt entities, universities and schools, government and private-sector businesses.

The scammer poses as an internal executive requesting employee Forms W-2 and Social Security Number information from company payroll or human resources departments. They may even send an initial “Hi, are you in today” message before the request.

The IRS has established a process that will allow employers and payroll service providers to quickly report any data losses related to the W-2 scam. See details at Form W-2/SSN Data Theft: Information for Businesses and Payroll Service Providers. If notified in time, the IRS can take steps to prevent employees from being victimized by identity thieves filing fraudulent returns in their names. There also is information about how to report receiving the scam email even if you did not fall victim.

As a reminder, tax professionals who experience a data breach also should quickly report the incident to the IRS. Tax professionals may contact their local stakeholder liaison. See details at Data Theft Information for Tax Professionals.

Also note, IRS suggests that if your business received the email but did NOT fall victim to the scam, forward the email to the IRS. The IRS needs the email header from the phishing email for its investigation, which means you must do more than just forward the email to phishing@irs.gov. Here’s what to do with the W-2 email scam:

1. The email headers should be provided in plain ASCII text format. Do not print and scan
2. Save the phishing email as an email file on your computer desktop
3. Open your email and attach the phishing email file you previously saved
4. Send your email containing the attached phishing email file to phishing@irs.gov. Subject Line: W2 Scam. Do not attach any sensitive data such as employee SSNs or W-2s.
5. File a complaint with the Internet Crime Complaint Center (IC3,) operated by the Federal Bureau of Investigation.

Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Dismissing a human rights complaint for "administrative convenience" and "dismissal of a human rights complaint on the merit" distinguished

Vetro v Hampton Bays Union Free School Dist., 2017 NY Slip Op 01910, Appellate Division, Second Department

In an action seeking to recover damages for his alleged wrongful termination of employment by the Hampton Bays Union Free School District, Frank J. Vetro appealed an order of the Supreme Court that denied his motion for summary judgment on the complaint and granted Hampton Bay's cross motion for summary judgment dismissing the complaint.

The Appellate Division sustained the lower court's ruling explaining that in this instance the "doctrine of election of remedies" barred Vetro from bringing an action in Supreme Court alleging the same discriminatory acts the he had advanced in his complaint filed with the New York State Division of Human [Division] in his complaint.

Executive Law §297(9) provides that in the event the Division has dismissed a complaint filed with it for "administrative convenience" the complainant is able to "maintain all rights to bring suit as if no complaint had been filed with the [Division]." In contrast, in the event the Division had dismissed the complaint or complaints on the merits and not for mere administrative convenience, recourse to Supreme Court alleging the same acts or omissions is not available to the complainant.

In particular, §297(9) provides that at  any  time  prior  to  a   hearing  before a hearing examiner, a person who has a complaint pending at the division may request that the division dismiss the complaint  and   annul his or her election of remedies so that the human rights law claim   may  be  pursued  in  court,  and  the  division may, upon such request,   dismiss the complaint on the grounds that such person's election  of  an   administrative  remedy  is  annulled.*

In this instance, said the Appellate Division, the Division of Human Rights dismissed Vetro's complaints on the "merits and not for mere administrative convenience." Thus, said the court, Supreme Court properly granted the school district's motion for summary judgment dismissing the complaint on the ground that this action is barred by the election of remedies doctrine.

* N.B. A complaint filed by the Equal  Employment Opportunity Commission to comply with the requirements of 42 USC 2000e-5(c)and 42 USC 12117(a) and29 USC 633(b) does not constitute the filing of a complaint within the meaning of §297(9) of New York State's Executive Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01910.htm

Use of excessive and inappropriate force on juvenile residents at a facility

Use of excessive and inappropriate force on juvenile residents at a facility

Click on text highlighted in color  to access the full text of the decision

 

Administrative Law Judge Kara J. Miller recommended termination of employment for a juvenile counselor who used excessive and inappropriate force on three residents.

The employee placed his arms, hand, and knee on one resident’s neck, pulled another resident backwards off a desk by his boxer shorts causing the resident to fall on his back and hit his head on a chair, and grabbed a third resident around the waist, lifting him in the air, and slamming him to the ground.

Additionally, the employee submitted a false report regarding the incident.   

Admin. for Children’s Services v. Judge, OATH Index No. 1412/16 (Jan. 20, 2017).

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Audits and examinations concerning State Department and Agencies:

Department of Health (DOH) - Security and Controls Over

Medications and Related Supplies

New York City Department of Housing Preservation and Development (HPD) - Awarding Housing Units and Maintaining Waiting Lists

Department of Labor (DOL)/Department of Corrections and Community Supervision (DOCCS)- Pay for Success Program

State Education Department - Compliance With the Reimbursable Cost Manual

Audits concerning the following political subdivisions of the State:

Ballston Lake Fire District - Length of Service Awards Program Service Credit

Town of Barker -Broome County- Justice Court Operations

Town of Genesee, -  Disbursements

Town of Hempstead Sanitary District No. 2 - Financial Condition and Procurement

Town of Horicon - Leave Accruals

Town of Kirkwood - Justice Court Operations

Lyon Mountain Fire District - Cash Disbursements

Manorville Fire District - Board Oversight and Fuel

Town of Mentz - Board Oversight

City of Olean - Budget Review

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination

Uwoghiren v City of New York, 2017 NY Slip Op 01782, Appellate Division, First Department

Fridrey O. Uwoghirenalleged that his former employer, the New York City Department of Juvenile Justice (DJJ), discriminated against him on the basis of his Nigerian national origin by not selecting him for two promotions and by paying him less than it paid a peer of a different national origin.

Appellate Division said that Uwoghiren had established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. However, said the court, DJJ offered legitimate, nondiscriminatory reasons for promoting two employees who were not of Nigerian origin. Representatives of DJJ had testified to the effect thatUwoghiren had limited his work to fulfilling the minimal requirements of his job, that he sometimes balked at assignments without good reason, and that he failed to meet all of his goals.

In contrast, DJJ had demonstrated that the promoted employees had done outstanding work in positions relevant to the two vacancies to which they had been appointed.

The Appellate Division ruled that Uwoghiren had failed to raise triable issues of fact as to whether DJJ's proffered reasons for its decisions were pretextual in view of the absence of any evidence from which a reasonable jury could infer that Uwoghiren national origin played a role in DJJ's decision to pass him over for promotions.

Indeed, observed the court, Uwoghiren "admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination."

Another issue raised by Uwoghiren: the individuals selected for advancement were promoted in violation of the Civil Service Law. The Appellate Division said that although the promoted individuals were provisional rather than permanent employees, "this technical violation does not establish a discriminatory motive."

In his testimony Uwoghirenrecounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of Nigerian origin. Such type of behavior, said the court, "does not establish discrimination based on national origin" as mere personality conflicts "must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code."

The decision also notes that Uwoghiren "failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin." The court explained that while Uwoghiren and the other employee had the same civil service title, "they were not similarly situated in light of the differences in their experience ... the other employee's earlier salary ... and their differing job responsibilities.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01782.htm